Opinion Number. 1412

Subject

SHIPPING CLAIMS BY COMMONWEALTH FOR SALVAGE IN RESPECT OF ASSISTANCE RENDERED TO MERCHANT SHIPS BY SHIPS OF rOYAL AUSTRALIAN NAVY

Key Legislation

NAVIGATION ACT 1912 ss 3, 315, 317, 317A: MERCHANT SHIPPING ACT 1894 (U.K.) (57 & 58 Vict. c. 60) ss 544, 546, 557, 558, 561: MERCHANT SHIPPING (SALVAGE) ACT 1916 (U.K.) (6 & 7 Geo. 5 c. 41) s 1: MERCHANT SHIPPING ACT 1854 (U.K.) (17 & 18 Vict. c. 104) s 458

Date
Client
The Comptroller-General, Department of Trade and Customs

The Comptroller-General of Customs has sent me the following memorandum for advice:

  • The following communication has been received from the Secretary, Department of Defence:
    • Salvage Services by H.M.A. Ships.
    • On occasions in the past various ships of the Royal Australian Navy have rendered assistance to Merchant Ships in distress, stranded or wrecked off the Australian Coast, and it has been the usual practice to make no claim for salvage or for stores consumed in respect of such services.

  1. In the recent wreck of s.s. ‘Cooma’ no claim was made for salvage in respect of the services rendered by H.M.A.S. ‘Moresby’, the cost of stores consumed, etc., being charged against Naval Votes. A claim for £14.1.8 was made, however, against the Australian Steamships Pty. Ltd., to cover actual out-of-pocket expenses, i.e., victualling of officers and ratings transferred from s.s. ‘Cooma’ and the cost of W/T messages despatched from ‘Moresby’ on behalf of the ‘Cooma’. (Portion of this sum was required to recoup the Ward Room and Captain’s Messes). This amount has been paid, but the Australian Steamships Pty. Ltd. remarked that the claim should have been rendered to the Receiver of Wrecks, Queensland–this action is being taken by them.
  2. The Naval Board would be glad, therefore, to be advised, for future guidance, whether, in the event of a ship of the Royal Australian Navy rendering assistance to a merchant ship in distress, etc. on the Australian Coast, a claim for any loss or damage, the value of stores consumed, and other expenses properly incurred in this connection, could be made against the Receiver of Wrecks. It is desired also to know, in the event of such claim being accepted, whether the Receiver of Wrecks is recouped by the Owners of the vessel or Underwriters.
  1. It is considered doubtful whether the claim for reimbursement of expenses incurred in connection with the saving of life from the s.s. ‘Cooma’ by the H.M.A.S. ‘Moresby’ can be sustained in law or recognised by the Receiver of Wrecks.
  2. Provision in regard to the remuneration of salvers of life or property from vessels wrecked, stranded or in distress is contained in Divisions 3–5 (sections 315–328) of Part VII of the Navigation Act. Section 315 deals with the saving of life, and section 317 of property.
  3. But by section 3 of the Act it is provided, inter alia, that ‘This Act shall not apply to ships belonging to…the Navy of the Commonwealth…’. Although open to doubt, the view is held that this provision, in the absence of any express provision to the contrary in the sections relating to salvage, has the effect of excluding the vessels of the Royal Australian Navy, and the officers and crews of such vessels, from any of the benefits of right to salvage conferred by those sections.
  4. Possibly, if this is the case, certain provisions of the Merchant Shipping Act may be taken as applicable to the matter. But if so, the extent to which they apply is not clear.
  5. Sections 544–565 of the Merchant Shipping Act 1894 deal with salvage services and claims in respect of such services. Section 544 relates to salvage for saving life. It provides, inter alia, in sub-section (1.), that ‘Where services are rendered wholly or in part within British waters in saving life from any British or foreign vessel, or elsewhere in saving life from any British vessel, there shall be payable to the salver, by the owner of the vessel, cargo or apparel saved, a reasonable amount of salvage …’.
  6. Sections 557 to 564 inclusive of the same Act make express provision in regard to salvage by His Majesty’s ships. Section 557 provides that ‘Where salvage services are rendered by any ship belonging to His Majesty, or by the commander or crew thereof, no claim shall be allowed for any loss, damage or risk caused to the ship or her stores, tackle or furniture, or for the use of any stores or other articles belonging to His Majesty supplied in order to effect those services, or for any other such expense or loss sustained by His Majesty by reason of that service.’ This provision has been modified to some extent by the Merchant Shipping (Salvage) Act 1916, section 1 of which provides that the Admiralty may claim in respect of salvage services rendered by any tug or salvage vessel belonging to His Majesty. But even as so extended, the provision (if it applies) would bar any claim by the Defence Department in respect of ships’ stores consumed, or loss or damage sustained, by any of the ships of the R.A.N. in connection with salvage services rendered to any ship.
  7. Section 557 continues, ‘and no claim for salvage services by the commander or crew, or part of the crew of any of His Majesty’s ships shall be finally adjudicated upon unless the consent of the Admiralty to the prosecution of that claim is proved.’ If vessels of the R.A.N. are included in the term ‘His Majesty’s ships’, and section 557 applies, the production of the written consent of the Admiralty would apparently be a condition essential to the recognition of any claim for salvage made by the commander or crew of a vessel of the R.A.N., whether by a Court or by a Receiver of Wreck.
  8. As to the meaning of the term ‘salvage services’, appearing in these two provisions of section 557, reference has apparently to be made to sections 544 and 546, referring respectively to services rendered in saving life and services rendered in saving property.
  9. As regards salvage of life, section 544 is wide enough (if it has application to the Commonwealth) to include any such salvage when effected from a British ship within Commonwealth waters, as in the case of the ‘Cooma’.
  10. But section 546, dealing with salvage of property, i.e., vessel, cargo, apparel or wreck, has apparently reference only to cases occurring ‘on or near the coasts of the United Kingdom or any tidal waters within the limits of the United Kingdom.’
  11. On its wording, the section would not appear to have application to cases occurring outside the waters adjacent to the United Kingdom. Section 458 of the Merchant Shipping Act 1854, from which section 546 was taken, is practically identical as to limitation of scope, but nevertheless in 1888 the Admiralty Division of the High Court of England awarded salvage to the commander and certain of the crew of H.M.S. ‘Falcon’ in respect of services rendered in saving cargo from a British ship stranded on a reef in the Red Sea, outside the limits prescribed. (Cargo ex ‘Ulysses’, 58 L.J.P.11; 13 P.D. 205; 60 L.T. 111.)
  12. Although, in the judgment as delivered, there is no reference whatever to the statutory provision (if any) under which this award was made, the necessary authority may possibly be found (as a matter of intent, however, rather than express provision) in sections 558/561 of the Merchant Shipping Act 1894, relating to salvage performed by H.M. ships ‘at any place out of limits of the United Kingdom or the four seas adjoining thereto’ in saving any vessel or cargo or property belonging to a vessel. If these provisions applied to the case of the ‘Falcon’ they may possibly also apply to salvage services (as to property) performed by vessel of the R.A.N. They have no reference to saving of life.
  13. I shall be glad if the Solicitor-General will be good enough to advise me–
    1. as to whether the provisions of the Navigation Act as to salvage apply to vessels of the R.A.N.;
    2. if not, as to whether the provisions of the Merchant Shipping Act above referred to apply to those vessels, and if so to what extent;
    3. as to whether the provisions of the Merchant Shipping Act (if applicable) bind a Receiver of Wrecks under the Navigation Act;
    4. as to whether the claim by the officers and crew of the H.M.A.S. ‘Moresby’, which is stated to have been paid by the Australian Steamships Proprietary Limited and rendered by the latter to the Receiver of Wrecks, can be recognised by the Receiver as a valid claim against the proceeds of the wreck held by him;
    5. if neither the Navigation Act nor the Merchant Shipping Act apply, or if the latter has partial application only, as to whether an amendment of the Navigation Act is considered advisable, so as to provide for the recognition of salvage claims (to an extent corresponding to that provided for in the Merchant Shipping Act in respect of the Admiralty and the commanders and crews of H.M. ships) by the Department of Defence and the commanders and crews of vessels of the R.A.N.;
    6. as to the nature of the reply, on points not covered by answers to the above, that should be made to the inquiries contained in the memorandum from the Department of Defence.

Section 3 of the Act provides that the Act shall not apply to ships belonging to (inter alia) the Navy of the Commonwealth.

The claim out of which the above questions arise was one for victualling officers and ratings of the ‘Cooma’ transferred to the ‘Moresby’. The manner in which the claim was made is not stated but part of the amount was required to recoup the Ward-room and Captain’s messes.

Claims for salvage are personal claims, that is they enure to the benefit of the salver, who is a person and not a ship. The ‘ship’ referred to in all the provisions quoted is the salved ship.

I do not think that the effect of section 3 is to prevent the making of claims for salvage by any persons serving on H.M.A. ships. The obligations of section 317A however, do not attach to the commander of a warship seeing that he is not the master of a ship to which the Act applies.

The effect of section 3 is that no provisions of the Act can apply to ships of the Australian Navy.

The references quoted are to Her Majesty’s ships which phrase I think, does not include ships of the Australian Navy.

The answers to question (a) and (b) are therefore in the negative.

Question (c) does not in the circumstances require an answer.

The victualling of the officers and ratings of the ‘Cooma’ was, in my opinion, one for salvage and is payable by the Receiver under section 323.

With regard to questions (e) and (f) I think it desirable that the Navigation Act should be amended more clearly to define the position of ships of the Australian Navy in the case of salvages effected by them.

I think that claims may be made by the Commonwealth for loss damage stores or expenses sustained; used or incurred in rendering assistance to ships in distress. The Receiver of Wrecks pays claims out of the proceeds of the wreck in his hands.

[Vol. 23, p. 48]